DECISION AND ORDER ON PETITION FOR INJUNCTIVE RELIEF AND MOTION TO DISMISS
Ronald K. Hooks is Regional Director of the Nineteenth Region of the National Labor Relations Board (the “Board” or “NLRB”). Before the Court at Docket 1 is the Petition for Injunctive Relief Pursuant to § 10(j)
Also before the Court at Docket 18 is Remington’s motion to dismiss. Petitioner opposed the motion and Remington replied.
The Court heard oral argument on both the petition and the motion on January 10, 2014.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of allegations by UNITE-HERE, Local 878, AFL-CIO (the “Union”), the collective bargaining representative of most unionized employees at the Hotel, that Remington committed numerous unfair labor practices (“ULPs”) in violation of the NLRA.
This is the second time in which the Regional Director, on behalf of the Board, has requested injunctive relief from the District Court for the District of Alaska related to alleged ULPs by Remington. The Court summarizes the recent history of the dispute:
• Leading up to May 28, 2010: Remington was engaged in labor disputes with the Union in anticipation of the expiration of their collective bargaining agreement, which was set to ex*1182 pire in early 2009.8 The Union filed multiple charges alleging ULPs, which were consolidated on May 28, 2010 into a complaint to initiate the administrative proceedings that the parties refer to as Remington I.9 The Union filed additional charges of ULPs, which were later consolidated into amended complaints.10 (The ULPs and complaints underlying Remington I are not at issue in this litigation.)
• June 18, 2010: President Obama designated Lafe Solomon as Acting General Counsel for the NLRB, effective June 21, 2010. The President nominated Solomon to permanently fill the position in January 2011 and May 2012, but Solomon was never confirmed. Solomon served as Acting General Counsel until November 2013.11
• August 25, 2011: After an evidentia-ry hearing, Administrative Law Judge (ALJ) Gregory Meyerson issued a decision in Remington I (the “ALJ Mey-erson Decision”), concluding that Remington had committed various ULPs.12
• October 11, 2011: Throughout the administrative proceedings in Remington I, the labor disputes between Remington and the Union continued, resulting in the Union filing additional charges of ULPs.13 On October 11, 2011, Acting General Counsel Solomon, on behalf of the Board, by former Regional Director Richard L. Ah-earn, issued an Order Consolidating Cases and Consolidated Complaint consolidating the ULP charges filed in September 2010 and January 2011, which constitutes the original complaint in the administrative proceedings that the parties refer to as Remington II, the proceedings at issue here14 This complaint would later be revised on January 6, 2012 (the first amended complaint),15 February 15, 2012 (the second amended complaint),16 and September 17, 2012 (the third amended complaint, which was orally amended on the record before ALJ McCarrick, discussed infra).17 Remington did not challenge Solomon’s designation as Acting General Counsel nor his ability to issue com*1183 plaints during the Remington II administrative proceedings.18
• December 9, 2011: Former Regional Director Ahearn, on behalf of the Board, filed a petition in the District Court for the District of Alaska seeking injunctive relief pursuant to § 10(j) related to the ULP charges underlying Remington I, as well as four of the ULP charges underlying Remington II.19 The case was assigned to Judge Timothy M. Burgess (Case No. 3:ll-ev-00240-TMB).20 °
• February 2, 2012: Judge Burgess “issued a temporary injunction under Sec. 10© • • • ordering [Remington] to recognize and bargain with the Union; resume contract negotiations, and honor all tentative agreements reached by the parties; at the Union’s request, rescind unilateral changes made in its employees’ terms and conditions of employment; and post the order and read it aloud to employees” (the “Judge Burgess Injunction”).21
• April 24, 2013: The Board issued a Decision and Order adopting, with minor modifications, ALJ Meyerson’s findings in Remington I.22 The Board concluded that Remington had committed numerous ULPs, including that it violated the duty to bargain in good faith and violated NLRA sections 8(a)(1), (3), (4), and (5). The Board’s decision is currently pending review by a United States Court of Appeals.23
• June 6, 2013: After an evidentiary hearing conducted over nineteen days between October 16 and December 14, 2012, ALJ John J. McCarrick issued a decision in Remington II (the “ALJ McCarrick Decision”), describing the proceedings as “yet a further chapter in [Remington’s] unlawful refusal to recognize and bargain with the Union and its continuing efforts to undermine the Union.”24 ALJ McCarrick concluded that Remington had committed numerous ULPs, including that it:
• Violated NLRA section 8(a)(1) by maintaining and enforcing various rules in the employee handbook; interrogating employees about union activities; engaging in surveillance of employees’ union activities; creating the impression that employees’ union activities were under*1184 surveillance; coercing employees regarding testimony at an NLRB hearing; telling employees to remove union buttons; prohibiting off-duty employees from distributing union literature; and threatening to call the police on employees or have employees arrested because they were engaged in union activity.25
• Violated NLRA section 8(a)(3) by disciplining, changing working hours, or discharging various employees.26 For example, Remington violated section 8(a)(3) by disciplining and discharging employee Dexter Wray; by reducing the hours of and discharging employee Elda Buezo; and by discharging employee Yanira Medrano. Remington further violated section 8(a)(4) by discharging employees Wray and Medrano because they gave testimony to the Board in connection with ULP proceedings.27
• Violated NLRA section 8(a)(5) by taking various actions unilaterally and without bargaining with the Union.28 For example, Remington violated section 8(a)(5) by banning Union representatives, including Daniel Esparza, from the Hotel; by unilaterally eliminating employee scheduling preference sheets; by ceasing to assign work by seniority; and by unilaterally changing policies. Remington further violated section 8(a)(5) by refusing to provide the Union with information necessary for and relevant to the Union’s performance of its collective bargaining duties.29
• July 30, 2013: The Senate confirmed the President’s nominees to the Board, such that the Board then had five confirmed members.
• August 9, 2013: Remington filed exceptions to the Board concerning the ALJ McCarrick Decision in Remington II?30 Remington II is currently pending before the Board.
• September 27, 2013: The five confirmed members of the Board unanimously authorized Acting General Counsel Solomon to institute 10© injunction proceedings in federal district court concerning Remington II?31
• November 13, 2013: Regional Director Hooks, for and on behalf of the Board, filed the current § 10© petition for injunctive relief.32
• December 18, 2013: Remington filed a motion to dismiss the petition.33 In the motion to dismiss, Remington asserts, for the first time, that the complaints underlying the Remington II administrative proceedings are not valid.
DISCUSSION
The Court addresses the motion to dismiss and the petition in turn.
Remington moves to dismiss this action, asserting that the consolidated complaints in Remington II were invalid because the Board lacked a statutory quorum when the complaints issued, and because Acting General Counsel Solomon was invalidly appointed and not empowered to issue the complaints.
A. Review of a Rule 12(b)(1) Motion to Dismiss.
Under Rule 12(b)(1), a court may dismiss an action for lack of subject matter jurisdiction. The court should construe a plaintiffs complaint liberally, with reasonable inferences drawn in the plaintiffs favor.
B. The General Counsel has the Authority to Issue a Complaint Notwithstanding Lack of a Board Quorum.
The NLRA accords the General Counsel the “final authority” to issue an administrative complaint “on behalf of the Board” alleging unfair labor practices. Section 3(d) of the NLRA provides this authorization:
The General Counsel of the Board ... shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.38
In this case, “the former Acting General Counsel of the Board, on behalf of the Board, by [the] former Regional Director” issued the complaints.
Remington maintains that because the General Counsel only has the statutory authority to issue complaints “on behalf of the Board,” any complaint issued on behalf of the Board during a time when the Board lacked a quorum was invalid.
C. The Complaints Issued by Acting General Counsel Solomon are Enforceable.
In June 2010, President Obama designated Lafe Solomon as the Board’s Acting General Counsel.
Remington asserts that even if section 3(d) confers the authority on the General Counsel to issue complaints without a Board quorum, Solomon could not act as General Counsel after his nomination and therefore he was not empowered to issue the complaints underlying Remington II. As noted by Remington, there are two methods available to appoint a person to hold the General Counsel position in a temporary acting capacity: (1) pursuant to section 3(d) of the NLRA; or (2) pursuant to section 3345 of the Federal Vacancies Reform Act of 1998 (“FVRA”).
1. Federal Vacancies Reform Act (5 U.S.C. § 3345).
Section 3345 is a statute that is applicable to virtually all federal government agencies, including the NLRB. It provides for three ways to temporarily fill the position of an executive officer whose appointment is required to be made by the President with consent of the Senate when the person who held that office dies, resigns, or is otherwise unable to perform his duties. First, section 3345(a)(1) provides that the first assistant “shall” temporarily perform the duties (i.e., automatic temporary succession). Second, section 3345(a)(2) provides that “notwithstanding” subsection 3345(a)(1), the President “may” temporarily designate a person to fill the vacant office who otherwise held an office
However, Remington asserts that when Solomon was nominated to the General Counsel position, his temporary appointment became invalid pursuant to section 3345(b)(1), which provides:
(b)(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person-
(i) did not serve in the position of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such officer for less than 90 days; and
(B) the President submits a nomination of such person to the Senate for appointment to such office.
There is no dispute that Solomon never served as first assistant to the General Counsel ((b)(1)(A)). And the parties agree that the President submitted Solomon’s name to the Senate for appointment to the General Counsel position in January 2011 and May 2012((b)(l)(B)). The complaints here were all issued after Solomon’s first nomination. Nevertheless, Petitioner asserts that subsection (b)(l)’s service limitations do not apply to Solomon’s appointment because the “notwithstanding subsection (a)(1)” language at the beginning of subsection (b)(1) means that the (b)(1) service limitations apply only to acting officers designated pursuant to subsection (a)(1), and not to acting officers serving under subsections (a)(2) or (3).
First, Petitioner asserts that the purpose of subsection (a)(3) was to “enlarge the pool of potential acting officers,” and that it would “undermine Congress’s stated goal of expanding the pool of potential acting officials beyond first assistants if subsection (b)(1) were construed, as Respondent construes it, to disqualify Senate-confirmed officials and other senior agency officials who have been nominated to fill the vacancy unless those officials had also served as first assistants.”
Petitioner also asserts that (b)(l)’s service limitations were intended to apply only to subsection (a)(1) because “[i]f Congress had meant for the service limitation in subsection (b)(1) to apply to all three
Furthermore, the Court finds persuasive Remington’s observation that subsection (b)(1) states that “[njotwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section if’ he also satisfies subsections (b)(1)(A) and (B). Thus, the statute clearly distinguishes between when it intends to reference a particular subsection (e.g., the reference to “subsection (a)(1)”) versus the entire section (e.g., the reference to “this section,” referring to the totality of section 3345).
Petitioner’s reference to legislative history does not require a contrary conclusion. Petitioner directs the Court to a statement by Senator Fred Thompson, which supports Petitioner’s analysis of section 3345: At a hearing on the FVRA, Senator Thompson asserted that “under § 3345(b)(1), the revised reference to § 3345(a)(1) means that this subsection applies only when the acting officer is the first assistant, and not when the acting officer is designated by the President pursuant to §§ 3345(a)(2) or 3345(a)(3).”
Because Solomon meets the criteria of both subsections (b)(1)(A) and (B) in that he did not serve as first assistant and was nominated by the President, he was not
2. Federal Vacancies Reform Act (5 U.S.C. § 3348) and the De Facto Officer Doctrine.
Section 3348(d) provides that actions taken by a person not validly acting under section 3345 (or other sections not relevant to this discussion) “shall have no force or effect” and “may not be ratified.”
The Ninth Circuit has questioned the “continued vitality of the de facto officer doctrine” to ratify actions taken by invalidly serving officers.
Th[e de facto officer] doctrine distinguishes between collateral attacks wherein a plaintiff challenges government action on the ground that the official who took the action was improperly in office, ... and direct attacks wherein*1190 the plaintiff challenges the qualifications of the officer, rather than the actions taken. The doctrine holds that collateral attacks pose too great a threat that past actions of the challenged official would be subjected to wholesale invalidation and thus interfere with orderly government.66
Remington seems to agree with this legal framework,
The Court disagrees that Remington’s attack is a purely direct attack. Although Remington asserts that it challenges only Solomon’s “qualifications” to hold the position of Acting General Counsel,
Remington concedes that it did not challenge Solomon’s designation during the administrative proceedings, but asserts that the present motion and “challenge to Solomon’s qualification is being raised at the first possible opportunity.”
Even if this Court were to consider Remington as making a direct attack, it would fail. Nguyen v. United States
Here, unlike the Article IV judge in Nguyen, Acting General Counsel Solomon was initially eligible to serve in the role of Acting General Counsel and would have remained eligible had he not been presi-dentially nominated.
Because Remington brings either an impermissible collateral attack or a direct attack that fails pursuant to the de facto officer doctrine, the Court will deny the motion to dismiss.
II. The Petition for Injunctive Relief.
Petitioner seeks an injunction pursuant to § 10(j) of the NLRA.
A. Review of a § 10(j) Petition for Injunction.
Section 10(j) of the NLRA provides that, “[t]he Board shall have power, upon issuance of a complaint” charging ULPs “to petition any United States district court” within a proper district “for appropriate temporary relief or restraining order.
[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.87
“Under the ‘sliding scale’ approach to preliminary injunctions observed in [the Ninth Circuit], ‘the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may off
B. Likelihood of Success on the Merits.
“On a § 10(j) petition, likelihood of success is a function of the probability that the Board will issue an order determining that the unfair labor practices alleged by the Regional Director occurred and that this Court would grant a petition enforcing that order, if such enforcement were sought.”
The ALJ is the Board’s first level deci-sionmaker. Having presided over the merits hearing, the ALJ’s factual and legal determinations may supply a useful benchmark against which the Director’s prospects of success may be weighed.93
At the same time, the ALJ’s decision is not dispositive.
In this case, the 80-page Decision and Order issued by ALJ McCarrick in Remington II details why he concluded that Remington had committed multiple ULPs in violation of the NLRA.
• Maintaining and enforcing various rules in the employee handbook;
• Interrogating employees about union activities;
• Engaging in surveillance of employees’ union activities;
• Creating the impression that employees’ union activities were under surveillance;
*1194 • Coercing employees regarding testimony at an NLRB hearing;
• Telling employees to remove union buttons;
• Prohibiting off-duty employees from disturbing union literature on hotel property; and
• Threatening to call the police on employees or have employees arrested because they were engaged in union activity.97
ALJ McCarrick concluded that Remington violated NLRA section 8(a)(3) by:
• Disciplining, discharging, and changing the schedules of various employees.98
ALJ McCarrick concluded that Remington violated NLRA section 8(a)(4) by:
• Discharging employees Dexter Wray and Yanira Escalante Medrano because they gave testimony to the Board in connection with ULP proceedings.99
ALJ McCarrick concluded that Remington violated NLRA section 8(a)(5) by:
• Taking various actions unilaterally and without bargaining with the union, and by refusing to provide the Union with information necessary for and relevant to the Union’s performance of its collective bargaining duties.100
The petition for injunctive relief asserts that Remington committed approximately forty ULPs.
As the Court expressed at oral argument, for purposes of preliminary injunc-tive relief, the Court will not reweigh the evidence before the ALJ or revisit the extensive factual findings he reached based on nineteen days of hearings and the testimony of numerous witnesses. The Court does not find compelling Remington’s generalized assertion that Petitioner is unlikely to succeed on the merits, nor its specific arguments concerning employees Wray, Buezo, and Medrano. The Court has thoroughly reviewed the ALJ McCar-rick Decision and finds that it demonstrates that Petitioner has “produced] some evidence to support the unfair labor practice charge[s], together with ... arguable legal theories].”
C. Irreparable Harm.
To obtain a preliminary injunction, a petitioner “must establish that irreparable harm is likely, not just possible.”
1. Violations of Section 8(a)(5) are likely to cause irreparable harm.
The Ninth Circuit has explained that with respect to “violations of § 8(a)(5), continuation of that unfair labor practice, failure to bargain in good faith, has long been understood as likely causing an irreparable injury to union representation.”
Here, Petitioner alleges and ALJ McCarrick has found multiple violations of Section 8(a)(5). For example, ALJ McCarrick concluded that the Union representatives were denied access to Union employees at the Hotel.
In evaluating irreparable harm, a court may consider the delay between the commission of ULPs and the filing of a complaint or an injunction. On this point, Remington cites the Ninth Circuit’s 2010 decision in McDermott v. Ampersand Publishing, LLC.
In contrast, in Frankl v. HTH Corporation, which involved a similarly lengthy delay between the filing of the first ULP charges and the filing of the § 10(j) petition, the Ninth Circuit affirmed the district court’s grant of injunctive relief.
The current petition bears more similarity to Frankl than McDermott. First, unlike McDermott, there are no special First Amendment interests at issue in these proceedings. Second, in contrast to the
D. Balance of the Equities.
In balancing the equities, “the district court must take into account the probability that declining to issue the injunction will permit the alleged unfair labor practice to reach fruition and thereby render meaningless the Board’s remedial authority.”
Remington had initially asserted that an injunction is unnecessary here because the Judge Burgess Injunction in relation to Remington I “has already granted the relief sought by the present petition.”
In its supplemental briefing, Remington asserts, however, that injunctive relief is nevertheless unnecessary because the Board’s affirmation of the ALJ Meyerson Decision is now pending review before a Court of Appeals, and that during the pen-dency of that appellate review, the Board may seek injunctive relief from a Court of Appeals through 29 U.S.C. § 160(e) (§ 10(e)).
E. Public Interest.
“[O]rdinarily when ... the [Regional] Director makes a strong showing of likelihood of success and of likelihood of irreparable harm, the [Regional] Director will have established that preliminary relief is in the public interest.”
CONCLUSION
Based on the foregoing, Remington’s Motion to Dismiss at Docket 18 is DENIED, and the Petition for a § 10(j) Preliminary Injunction at Docket 1 is GRANTED. The terms of the Preliminary Injunction are set forth in the following Order.
ORDER
The Petition for Injunctive Relief filed by Petitioner Ronald K. Hooks, Regional Director for Region 19 of the National Labor Relations Board, for and on behalf of the Board, against Remington Lodging & Hospitality, LLC, d/b/a The Sheraton Anchorage, pursuant to § 10(j) of the National Labor Relations Act (Docket No. 1) is GRANTED. IT IS HEREBY ORDERED that, pending the final disposition by the National Labor Relations Board of the matters involving the Parties to this action now pending before it:
1. Respondent, Remington Lodging & Hospitality, LLC, d/b/a The Sheraton Anchorage, and its officers, agents, servants, employees, attorneys, and all other persons who are in active concert or participation with those persons, are hereby enjoined and restrained from:
a. Maintaining and enforcing the following access rules in its employee handbook:
i. Employees “agree not to return to the Hotel before or after [their] working hours without authorization from [their] manager;” and
ii. Employees “must confine their presence in the Hotel to the area of their job assignment and work duties. It is not permissible to roam the property at will or visit other parts of the Hotel, parking lots, or outside facilities without permission of the immediate Department Head;”
b. Maintaining and enforcing the following solicitation and distribution rule in its employee handbook:
i. “Distribution of any literature, pamphlets, or other materials in a guest or work area is prohibited ... Solicitation of guests by associates at any time for any purpose is also inappropriate;”
c. Interrogating employees about their Union activities;
d. Engaging in surveillance of its employees’ Union activities;
e. Creating the impression that its employees’ Union activities are under surveillance;
f. Coercing its employees regarding their testimony at an NLRB hearing;
g. Telling employees to remove their Union buttons;
h. Prohibiting off-duty employees from distributing Union literature on Hotel property;
*1199 i. Threatening to call the police on employees or have its employees arrested because they were engaged in Union activity;
j. Disciplining employees because of their Union activities;
k. Issuing employees poor evaluations because of their Union activities;
l. Changing schedules of employees because of their Union activities or support;
m. Decreasing the hours or shifts of employees because of their Union activities or support;
n. Increasing the number of scheduled shifts for banquet employees who do not support the Union to discourage employees from engaging in Union activities;
o. Discharging employees because of their protected concerted and/or Union activities, and/or their participation in Board processes;
p. Failing and refusing to bargain in good faith with the Union by unilaterally:
i. banning Union Representative Daniel Esparza from the Hotel;
ii. eliminating banquet employees’ scheduling preference sheets;
iii. terminating its practice of posting banquet employee schedules by noon on Fridays;
iv. changing the sick leave policy in the parties’ expired collective-bargaining agreement;
v. subcontracting bargaining unit work;
vi. reducing banquet server compensation by allocating a portion of their gratuities to pay for the services of third party banquet servers;
vii. changing banquet server and set up duties;
viii. changing banquet server and set up staffing and scheduling; and
ix. failing and refusing to provide the Union with information necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bargaining representative of bargaining unit employees; and
q.In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by § 7 of the Act.
2. Respondent, Remington Lodging & Hospitality, LLC, d/b/a The Sheraton Anchorage, and its officers, agents, servants, employees, attorneys, and all other persons who are in active concert or participation with those persons, are hereby directed to:
a. Within five (5) days of this Order, offer to reinstate Dexter Wray, Ya-nira Medrano, and Elda Buezo to their former positions along with their seniority and all other rights and privileges;
b. Within fourteen (14) days of this Order, remove from its files all references to the discharges of Dexter Wray, Yanira Medrano, and Elda Buezo and notify them in writing that this has been done and that the discharges will not be used against them in any way;
c. Within fourteen (14) days of this Order, remove from its files all references to the written disciplines and poor evaluations issued to Fay Gavin, Ana Rodriguez, Audelia Hernandez, Shirley Grimes, and Dexter Wray and notify them in writing that this has been done and that these will not be used against them in any way;
*1200 d. Within fourteen (14) days of this Order, remove from its files all references to disciplines issued as a result of its unilateral changes made in the terms and conditions of their employment;
e. At the request of the Union, rescind the unilateral changes made in its employees’ terms and conditions of employment implemented in or about July 2010, including: changing its sick leave policy from that contained in the expired collective bargaining agreement;
f. At the request of the Union, rescind the unilateral changes made in its employees’ terms and conditions of employment implemented in or about October 2011, including: changing banquet server and set up job duties, and changing banquet server and set up staffing and scheduling;
g. Immediately post copies of this Order for no fewer than 60 days, at all locations where Respondent’s notices to employees are customarily posted; maintain such notices free from obstructions or defacements pending the Board’s administrative proceeding; and grant to agents of the Board reasonable access to Respondent’s Hotel to monitor compliance with this posting requirement;
h. Within ten (10) days after entry of this Order, hold a mandatory meeting or meetings for employees, scheduled to ensure the widest possible attendance during regular business hours and on Respondent’s premises, at which the Order is to be read in English and Spanish to the employees by a responsible management official or, at Respondent’s option, a Board Agent in a responsible official’s presence; and
i.Within twenty (20) days of the issuance of this Order, file with the District Court and serve a copy upon Petitioner, a sworn affidavit from a responsible Respondent official which describes with specificity how Respondent has complied with the terms of this Order, including the exact locations where Respondent posted the materials required under this Order.
Notes
. 29 U.S.C. § 160(3).
. 29U.S.C. § 151 etseq.
. Docket 17 (Pet. Opp’n); Docket 21 (Pet. Reply).
. Docket 22 (MTD Opp’n); Docket 23 (MTD Reply).
. Docket 25 (Pet’r Supp. Br.); Docket 29 (Resp’t Supp. Br.).
. Docket 24 (Minute Entry).
. See Docket 1 at 2, 4 ¶¶ 4, 22(c) (Pet.).
. See Ahearn ex rel. NLRB v. Remington Lodging & Hospitality,
. See Ahearn ex rel. NLRB v. Remington Lodging & Hospitality LLC, 3:11-cv-00240-TMB, Docket 1 at 2 ¶¶ 4, 7 (Ahearn Pet.).
. See id. at 2-3, 7 ¶¶ 8, 11, 15, 18.
. Docket 22-1 (Designation Letter, dated June 18, 2010). Solomon’s tenure as Acting General Counsel ended November 4, 2013, when the new General Counsel was sworn into office.
. Remington Lodging & Hospitality, LLC d/b/a/ The Sheraton Anchorage & Unite Here! Local 878, AFL-CIO,
. Docket 1 at 2 ¶ 4 (Pet.); see also Dockets 3-1 through 3-5 (Pet. Ex. 1: Charge Against Employer Forms, dated July 2010 through Sept. 2012).
. Docket 1 at 2-3 ¶ 7 (Pet.); see also Docket 3-6 (Pet. Ex. 2: Order Consol. Cases, Consol. Compl., dated Oct. 11, 2011).
.' Docket 1 at 3 1110 (Pet.); see also Docket 3-8 (Pet. Ex. 4: Am. Consol. Compl., dated Jan. 6, 2012).
. Docket 1 at 3 ¶ 13 (Pet.); see also Docket 3-11 (Pet. Ex. 7: 2d Am. Consol. Compl., dated Feb. 15, 2012).
. Docket 1 at 3, 4 ¶¶ 15, 19 (Pet.); see also Docket 3-15 (Pet. Ex. 9: 3d Consol. Compl., dated Sept. 17, 2012).
. See Docket 3-19 (Pet. Ex. 13: ALJ McCar-rick Decision); Docket 3-7 at 6 (Pet. Ex. 3: Answer, dated Oct. 28, 2011); Docket 3-9 (Pet. Ex. 5: Answer to Am. Consol. Compl., dated Jan. 6, 2012); Docket 3-12 (Pet. Ex. 8a: Answer to 2d Am. Consol. Compl., dated Feb. 29, 2012); Docket 3-13 (Pet. Ex. 8b: Answer to 3d Am. Compl., dated Oct. 1, 2012); Docket 3-14 (Pet. Ex. 8c: Am. to Answer Adding New Affirmative Defenses, dated Nov. 2, 2012).
. These four charges are listed in Petitioner’s Briefing at Docket 25 at 7 (Pet'r Supp. Br.). There is otherwise no overlap between the charges of ULPs underlying Remington I and II. See Docket 2 at 10 (Memo, in Support of Pet.).
. See Docket 1 at 3 ¶ 9 (Pet.).
. Remington Lodging & Hospitality, LLC,
. Id. at *1.
. Docket 2 at 10 n. 2 (Memo, in Support of Pet.). There is some dispute concerning whether this appeal will be heard by the D.C. Circuit or Ninth Circuit Court of Appeals. Compare Docket 17 at 2 n. 1 (Pet. Opp'n) (appeal pending in D.C. Circuit Court of Appeals) with Docket 21 at 7 (Pet. Reply) (cross-filed appeals to Ninth Circuit and D.C. Circuit).
. Docket 1 at 4 ¶ 20 (Pet.); Docket 3-19 at 8-9 (Pet. Ex. 13: ALJ McCarrick Decision).
. See Docket 3-19 at 73-74 (Pet. Ex. 13: ALJ McCarrick Decision).
. See id. at 74-75.
. See id. at 75.
. See id. at 75-76.
. See id. at 76.
. Docket 1 at 7 ¶ 24 (Pet.).
. Docket 2 at 13 (Memo, in Support of Pet.); Docket 3-26 (Pet. Ex. 20: Bd. Authorization for § 10(j) Proceedings, dated Sept. 27, 2013). There is no dispute that the Board had a valid quorum at this point.
. Docket 1 (Pet.).
.Docket 18(MTD).
. Docket 18 at 11-21 (MTD).
. See Wolfe v. Strankman,
. See 29 U.S.C. § 1600 ("upon issuance of a complaint,” Board may file for injunctive relief).
. See id.; see also Hooks v. Kitsap Tenant Support Servs., Inc., No. C13-5470-BHS,
. 29 U.S.C. § 153(d).
. See, e.g., Docket 1 at 2-3 ¶ 7 (Pet.).
. Docket 18 at 10 (Mot).
. See NLRB v. Enter. Leasing Co. SE, LLC, 722 F.3d 609 (4th Cir.2013); NLRB v. New Vista Nursing & Rehab.,
. See Enter. Leasing,
. Compare 29 U.S.C. § 160(b) (the Board may "designate[ ]” its agents to issue complaints) and 29 U.S.C. § 153(b) (the “Board is authorized to delegate to its regional directors” certain powers) with 29 U.S.C. § 153(d) (the General Counsel “shall have final authority” concerning "investigation of charges and issuance of complaints” but "shall have such other duties as the Board may prescribe or as may be provided by law”). Respondent does not reach this issue. See Docket 18 at 11 (MTD) (“The question as to whether Acting General Counsel Solomon had such power cannot be reached because ... Solomon was never validly appointed to the position of Acting General Counsel.”).
. Docket 22 at 9 (MTD Opp’n).
. Docket 18 at 11 (MTD).
. Section 3(d) of the NLRA provides that the President may designate a person to act as General Counsel, but "for no more than forty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate.” 29 U.S.C. § 153(d).
. 5 U.S.C. § 3345(a)(3).
. Docket 22 at 7, 9-10 (MTD Opp'n); Docket 18 at 14 (MTD).
. Docket 22 at 11-12 (MTD Opp'n).
. Id. at 8-9, 11-12.
. Id. at 11.
. Docket 18 at 19 (MTD).
. Cf. United States v. Kuok,
. 5 U.S.C. § 3345(b)(1) (emphasis added).
. Docket 22 at 11-12 (MTD Opp'n) (quoting Cong. Rec., 105th Cong., 2d Sess. (Oct. 21, 1998) at 27496).
. See Church of Scientology of Cal. v. U.S. Dep’t of Justice,
. See Cong. Rec., 105th Cong., 2d Sess. (Oct. 21, 1998), at 27496.
. Milner v. Dep’t of the Navy, - U.S. -,
. 5 U.S.C. § 3348(d).
. Id. § 3348(e) ("This section shall not apply to ... the General Counsel of the National Labor Relations Board.”).
. Docket 18 at 20-21(MTD) ("Congress, by exempting the General Counsel’s office from the penalty provisions of § 3348(d), has simply permitted the NLRB to raise the defense of the de facto officer doctrine, while stripping that defense from other offices not so exempted.”); Docket 25 at 3 (Pet’r Supp. Br.) ("Because the General Counsel of the NLRB is expressly exempted from § 3348 by § 3348(e)(1), the traditional de facto officer ... defense[ ] remain[s] available to defend Mr. Solomon's action in issuing the complaint at issue here.”). Remington seems to alter course in its Supplemental Brief, asserting that it disagrees with this reading of the FVRA. See Docket 29 at 2 (Resp't Supp. Br.) (“Remington disagrees with this reading FVRA” to mean that “section 3348(e)(1) exempted NLRB General Counsel [from section 3348(d)], thus retaining the de facto officer defense,” but agrees that "generally speaking” the de facto officer doctrine is an available defense).
. Silver v. U.S. Postal Service,
.
. Ryder v. United States,
. Roell v. Withrow,
. Horwitz v. State Bd. of Med. Exam'rs,
. Docket 18 at 21 (Mot.); see also Docket 29 at 3 (Resp’t Supp. Br.) (“Remington ... acknowledges that a 'collateral' attack on a past action by an invalidly appointed General Counsel is protected by the doctrine.” (emphasis in original)).
. Docket 29 at 3 (Resp't Supp. Br.) (emphasis in original).
. Id. at 5. Petitioner asserts "[t]here is no merit to Respondent's contention ... that the de facto officer doctrine is unavailable as a defense because that doctrine insulates officers only from collateral attack, not from direct challenge,” but provides no authority that supports that argument. Docket 25 at 4 (Pet'r Supp. Br.).
. Solomon’s tenure as Acting General Counsel ended November 4, 2013. The Petition was filed November 13, 2013, and Remington filed its answer and the motion to dismiss on December 4 and 18, respectively. Although Remington filed its motion to dismiss within a few weeks of the end of Solomon’s tenure, this was nevertheless over two years after Solomon consolidated and issued the underlying administrative complaints.
. Docket 29 at 5 (Resp't Supp. Br.).
. See Newark Elec. Corp., No. 03-CA-088127, 2014 NLRB LEXIS 9, at *2 n. 3 (NLRB Jan, 6, 2014) (ALJ decision declines to dismiss complaint based on allegation that Acting General Counsel Solomon lacked authority); C & G Distiib. Co.,
.
. Id. at 73-74,
. Id. at 73,
. Id. at 77,
. Id.
. Id. (discussing Ball v. United States,
. Nguyen,
. Id. at 79,
. Remington makes several additional arguments as to why the de facto officer doctrine ought not to apply, but they are not compelling. For instance, it argues "the doctrine is
. But see S.Rep. No. 105-250, 105th Cong., 2d Sess., at 17-20.
. Cf. Nguyen,
. The NLRB has repeatedly expressed its view that the complaints issued by Acting General Counsel Solomon are valid. See, e.g., Belgrove Post Acute Care Ctr.,
. 29 U.S.C. § 160®.
. Frankl v. HTH Corp.,
. McDermott v. Ampersand Publ’g, LLC,
. Pimentel v. Dreyfus,
. Frankl,
. Frankl,
. Id. at 1356 (quoting Miller,
. Remington Lodging & Hospitality,
. Id.
. Id. at 1196 (citing McDermott,
. Small,
. See Docket 3-19 (Pet. Ex. 13: ALJ McCar-rick Decision).
. Id. at 73-74.
. Id. at 74-75.
. Id. at 75.
. Id. at 75-76.
. Docket 1 at 6-7 (Pet.).
. Docket 17 at 10-13 (Pet. Opp’n).
. Frankl,
. Small,
. Frankl,
. Id. at 1362.
. Id.
. Id.; see also Small,
. Frankl,
. Frankl,
. See, e.g., Docket 3-19 at 24 (Pet. Ex. 13: ALJ McCarrick Decision) ("unilateral discontinuance of the use of preference sheets in scheduling bargaining unit employees violated Section 8(a)(5)”); Docket 3-19 at 57, 58 (Respondent violated Section 8(a)(1) and (5) when it unilaterally barred Union representatives from Hotel on April 21, 2010 and July 2, 2010); Docket 3-19 at 61 (Respondent violated Section 8(a)(1) and (5) by abandoning use of seniority in assigning work at hotel).
. Docket 3-19 at 33-39 (Pet. Ex. 13: ALJ McCarrick Decision) (Wray); Docket 3-19 at 41-44 (Buezo); Docket 3-19 at 39-41 (Medra-no).
. Docket 17 at 5-6 (Pet. Opp'n) (discussing McDermott,
. McDermott,
. Id. at 964, 965.
. Id. at 965; see also id. at 966 (Clifton, J. dissenting) ("The injunction here only seeks reinstatement for terminated employees. Period.”).
. Frankl,
. Id. at 1363 (This "ma[kes] the District Court’s task in evaluating the propriety of interim relief much easier, and much more likely to be carried out accurately.”).
. Id. at 1364.
. Docket 1 at 10-11 (Pet.). Petitioner notes that where "certain unfair labor practices are no longer ongoing, whether due to the Initial Injunction or otherwise, Petitioner only seeks that Respondent be enjoined and restrained from further action.” See Docket 21 at 8 n. 2 (Pet. Reply).
. Frankl,
. See note 42.
. Small,
. Docket 17 at 7 (Pet. Opp'n) (italics removed).
. See Docket 25 at 5-6 (Pet’r Supp. Br.); Docket 29 at 7 (Resp’t Supp. Br.) ("Remington concedes ... that a 10(j) injunction lapses by operation of the Act, upon issuance of the Board decision.”).
. See Docket 25 at 7 (Pet'r Supp. Br.) (listing four ULPs).
. See Docket 29 at 7 (Resp't Supp. Br.). As noted above, there is some dispute concerning which Court of Appeals has jurisdiction. See note 23.
. Small,